THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1223 OF 2004

SURAJ & ANR.              …. APPELLANTS

   Versus

STATE OF U.P.              .... RESPONDENT

J U D G M E N T

C.K. PRASAD, J.

1. Appellants  Suraj  and  Hari  Singh  alongwith  Shyam,  

Gulab  and   Baladin  were  put  on  trial  for  offence  under  

Sections  302/149,  147  and  148  of  the  Indian  Penal  Code.  

Baladin died during the pendency of the trial.  All of them were  

convicted  for  offence  under  Section  302/149  of  the  Indian  

Penal Code and sentenced to undergo imprisonment for life by  

Judgment and Order dated 8th December, 1981 passed by the  

III Additional Sessions Judge, Hamirpur in Sessions Trial No.  

201 of 1980.  Shyam, Gulab and Appellant Suraj were also

convicted  under  Section  148 of  the  Indian Penal  Code  and  

each  of  them  sentenced  to  undergo  two  years  rigorous  

imprisonment.   Appellant  Hari  Singh was also  found guilty  

under Section 147 of the Indian Penal Code and sentenced to  

undergo  rigorous  imprisonment  for  one  year.   All  the  

sentences were directed to run concurrently.  All the convicted  

persons  including  the  appellants  herein  preferred  appeal  

before  the  Allahabad  High  Court  which  was  registered  as  

Criminal  Appeal  No.  3024  of   1981.   Convicts  Shyam and  

Gulab died during the pendency of appeal  and their  appeal  

had abated.  However, appeal preferred by the appellants was  

dismissed  by  the  Division  Bench  of  the  High  Court  by  its  

Judgment and Order dated 12th May, 2004 passed in Criminal  

Appeal No. 3024 of 1981.

2. Aggrieved  by  the  said,  appellants  have  preferred  this  

Appeal by Special leave to this Court.

3. According  to  the  prosecution,  on  29th March,  1980  at  

about  10  A.M.,  Smt.  Sirawan  (PW.1)  along  with  her  minor  

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daughter, Dhanti (PW.3) and her husband Mansha (deceased)  

alongwith one Chitwa Chamar were going to harvest  masur  

crop  belonging  to  the  deceased.   When  they  were  passing  

through a lane and came near Gurwahi Bakhari of Tulsi Dass,  

all  the  accused  persons  variously  armed  arrived  there.  

Appellant  Suraj  was alleged to  have been armed with farsa  

whereas Hari Singh was armed with lathi.   Prosecution had  

further  alleged  that  accused  Baladin  abused  Mansha  and  

exhorted to kill him.  At this, all the accused persons including  

the  appellants  assaulted  Mansha  with  farsa,  lathi  etc.   On  

alarm being raised by Smt. Sirawan (PW.1), Dhanti (PW.3) and  

Chitwa Chamar, villagers including Swamidin (PW.2) collected  

at  the  spot  and  being  challenged  by  them,  the  accused  

persons fled away from the place of occurrence.  Smt. Sirawan  

(PW.1),  Dhanti  (PW.3)  and  Swamidin  (PW.2)  witnessed  the  

accused persons including the appellant Suraj and Hari Singh  

assaulting  Mansha  with  lathi  and  Farsa.  According  to  the  

prosecution,  while  the  informant,  Smt.  Sirawan  (PW.1)  was  

making arrangements of bullock cart for shifting her injured  

husband-Mansha, he died.

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4. Appellants denied to have committed the offence. From  

the trend of  the  cross-examination,  their  defence is  of  false  

implication.   In  order  to  bring  home  the  charge,  the  

prosecution had examined  altogether  six  witnesses  out of  

whom  Smt.  Sirawan  (PW.1),  Swamidin  (PW.2)  and  Dhanti  

(PW.3)  claimed  to  be  the  eye-witnesses  to  the  occurrence.  

Prosecution had also examined  Dr. A.K. Srivastava (PW.6), the  

Medical Officer, who had conducted post mortem on the dead  

body of Mansha on 30th March, 1980 at 10.30 A.M.  

5. Trial Court, relying on the evidence of the eye-witnesses  

and the doctor, held the appellants guilty as above which has  

been affirmed in the appeal.

6. Mrs.  Shally  Bhasin  Maheshwari,  learned  counsel  

appearing on behalf of the appellants raises a very short point.  

She submits that the doctor in his evidence has not stated  

about  any  injury  sustained  by  the  deceased  nor  whispered  

about the cause of death.  She also points out that the post-

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mortem report has neither been brought on record nor proved  

or marked as an exhibit.  It has also been pointed out that the  

doctor has not stated anything about the nature of injury i.e.  

grievous or  simple, sustained by the deceased.  Not only this,  

according to Mrs. Maheshwari, the doctor has been  declared  

hostile by the prosecution itself and was cross-examined.   She  

also  emphasizes  that  even  in  the  cross-examination,  the  

prosecution has not elicited anything regarding the cause of  

death, nature of injury and  post-mortem report has not been  

proved.  Accordingly, she submits that appellants utmost can  

be convicted under Section 324 of the Indian Penal Code.   

7. Mr. Pramod Swarup, learned Senior Counsel appears on  

behalf of the State.   

8. The aforesaid submission advanced by Mrs. Maheshwari  

is on the basis of the materials in the paper book and at the  

first  blush,  we were  impressed by her  submission.  But  the  

entire  premise  on  which  she  based  her  submission  looked  

unusual  to  us  and  accordingly  we  examined  the  original  

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record.  We find that  Dr. A.K. Srivastava (PW. 6)  had stated  

all the injuries sustained by the deceased.  In his evidence as  

also  in  the  post-mortem  report,  he  has  stated  that  the  

deceased  had  sustained  sixteen  ante-mortem  injuries  of  

various  kinds  and  descriptions  i.e.  contusion,  abrasion,  

laceration, incised & punctured wounds.  Injury nos. 7,8,10  

and 11 have been found to be punctured wounds.  Cause of  

death, according to the evidence of this witness as also post-

mortem report is haemorrhage and shock as a result of the  

aforesaid anti-mortem injuries.  He had also proved the post-

mortem report and from the record, it is evident that the same  

has been marked as Exhibit 12.

9. From what we have stated above, it is evident that Mrs.  

Maheshwari’s submission is un-founded on facts.  True it is  

that PW.6 Dr. A.K. Srivastava has been declared hostile but  

that  itself  shall  not  wipe  out  his  entire  evidence.  In  his  

evidence he has given the details of the injuries sustained by  

the  deceased  and the  cause  of  death.  Merely  an erroneous  

opinion in regard to the punctured wounds led the prosecution  

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to  declare  him  hostile  but  this  will  not  dilute  his  other  

evidence if otherwise worthy of reliance.  Merely the fact that  

PW.6 Dr. A.K. Srivastava has been declared hostile, his entire  

evidence is  not wiped out and for  the purpose of  nature of  

injuries and the cause of death, his evidence can be relied on.

10.    Counsel for the appellants, then points that injury nos.  

7,8,10 and 11, according to the doctor himself are punctured  

wounds  and the  weapon alleged to  have  been used  by  the  

accused persons cannot cause punctured wounds.  According  

to her, eye-witnesses’ account has not been corroborated by  

the medical evidence and hence on this ground alone, the case  

of the prosecution deserves to be rejected.   

11. We do not find any substance in the submission of Mrs.  

Maheshwari.  The doctor who had conducted the post-mortem  

examination has been declared hostile  when he opined that  

injury  nos.  7,8,10  &  11  as  punctured  wounds.   He  had  

admitted that before giving the opinion, he had not measured  

dimensions i.e. thickness or depth of the injuries.  In view of  

the  aforesaid,  this  opinion  of  the  doctor,  which  has  no  

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foundation deserves to be ignored and has rightly been ignored  

by the trial Court and the appellate Court.

12. Smt. Sirawan (PW.1) who happens to be the wife of the  

deceased Mansha, Swamidin (PW.2), an independent witness  

and  Dhanti  (PW.3)  daughter  of  the  deceased  have  clearly  

stated  that  it  was  the  appellants  alongwith  other  accused  

persons who had assaulted the deceased with pharsa,  lathi  

etc.  The doctor has found contusion and incised wounds on  

the  person  of  the  deceased.   Eye-witnesses’  account  are  

consistent  and  there  is  no  material  contradiction  in  their  

evidence to discredit their truthfulness.  In our opinion, the  

prosecution  has  been  able  to  prove  its  case  beyond  all  

reasonable doubts.   

13. We  do  not  find  any  merit  in  the  appeal  and  it  is  

dismissed accordingly.

………………………………….J.                                 ( G.S. SINGHVI )

………………………………….J.                                ( C.K. PRASAD )

New Delhi, July 6, 2010.

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